SPLIT-OFF AGREEMENT
SPLIT-OFF AGREEMENT, dated as of September 5, 2008 (this “Agreement”), with an effective date of August 31,
2008 (the “Effective date”), by and among 1st Home Buy & Sell Ltd., a Nevada corporation (“Seller”),
Xxxxx Xxxx (“Buyer”), Pacific Coast Development Corp., a British Columbia
corporation (“PCDC”).
R E C I T A L S
WHEREAS, on July 1, 2006, Seller acquired 233 shares of issued and outstanding common stock of PCDC (“PCDC Shares”) in exchange
for $100,000. PCDC is the operating subsidiary of Seller and Seller has no other business
operations.
WHEREAS, Buyer desires to acquire the Shares (as defined in
Section 1.1) from Seller, and to assume, as
between Seller and Buyer, for the return to Seller of 300,000
shares of Seller’s common stock owned by Buyer and Seller shall forgive all
debts, obligations and
liabilities of both Buyer
and PCDC owed to the Seller, on the terms and subject to the conditions specified
in this Agreement; and,
WHEREAS, Seller desires to sell and
transfer the Shares to the Buyer, on the terms and subject to the
conditions specified in this Agreement.
NOW, THEREFORE, in consideration of the
premises and the covenants, promises, and agreements herein set forth and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending legally to be bound,
agree as follows.
I. PURCHASE AND SALE OF
STOCK.
1.1 PURCHASED SHARES. Subject to the terms
and conditions provided below, Seller shall sell and transfer to Buyer
and Buyer shall purchase from Seller, on the Closing Date (as defined in Section
1.3), all the issued and outstanding shares of capital stock of PCDC (the “Shares”) owned by Seller.
1.2 PURCHASE PRICE. The purchase price for
the Shares shall be the transfer and delivery by Buyer to Seller of
300,000 shares of common
stock of Seller that buyer owns (the “Purchase Price
Shares”), deliverable as provided in Section 2.2 and Seller shall forgive
all debts, obligations and
liabilities of both Buyer
and PCDC owed to the Seller.
1.3 CLOSING.
The closing of the transactions contemplated in this Agreement (the “Closing”) shall be as of the
Effective Date. The date on
which the Closing occurs shall be referred to herein as the Closing Date (the “Closing
Date”).
II. CLOSING.
2.1 TRANSFER OF SHARES. At the Closing,
Seller shall deliver to Buyer certificates representing the
PCDC Shares, duly endorsed to Buyer or as
directed by Buyer, which delivery shall vest Buyer
with good and marketable title to all of the issued and outstanding shares of
capital stock of PCDC owned
by Seller, free and clear
of all liens and
encumbrances.
2.2 PAYMENT OF PURCHASE
PRICE. At the Closing, Buyer shall deliver to Seller a certificate or certificates
representing the Purchase Price Shares duly endorsed to Seller, which delivery shall
vest Seller with good and marketable title to the Purchase Price Shares, free
and clear of all liens and encumbrances and Seller shall forgive any and all
debts of both Buyer and PCDC owed by either to the Seller in exchange for the
Purchase Price Shares.
2.3 TRANSFER OF RECORDS. On or before the
Closing, Seller shall arrange for transfer to PCDC all existing corporate books and
records in Seller’s possession relating to PCDC and its business, including but not
limited to all agreements, litigation files, real estate files,
intellectual property, Internet domain names, personnel files and filings with
governmental agencies; PROVIDED, HOWEVER, when any such documents relate
to both Seller and PCDC, only copies of such documents need be furnished. On or
before the Closing, Buyer and PCDC shall transfer to Seller all existing
corporate books and records in the possession of Buyer or
PCDC relating to Seller, including but not
limited to all corporate minute books, stock
ledgers, certificates and corporate seals of Seller and all agreements, litigation
files, real property files, personnel files and filings with governmental
agencies; PROVIDED, HOWEVER, when any such documents relate to both Seller and
PCDC or its business, only copies of
such documents need be
furnished.
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III. BUYER’S REPRESENTATIONS AND WARRANTIES. Buyer
represents and warrants to Seller and the Company
that:
3.1 CAPACITY AND ENFORCEABILITY. Buyer has
the legal capacity to execute and deliver this Agreement and the
documents to be executed and delivered by Buyer at the Closing pursuant to the
transactions contemplated hereby. This Agreement and all such documents
constitute valid and binding agreements of Buyer, enforceable in accordance with
their terms.
3.2 COMPLIANCE. Neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby by Buyer will result in the breach of any term or provision of,
or constitute a default under, or violate any agreement, indenture,
instrument, order, law or regulation to which Buyer is a party or by which Buyer is
bound.
3.3 [RESERVED]
3.4 LIABILITIES. Following the Closing,
Seller will have no liability for any debts, liabilities or obligations of
PCDC or its business or activities,
and there are no outstanding guaranties,
performance or payment bonds, letters of credit or other contingent contractual
obligations that have been undertaken by Seller directly or indirectly in
relation to PCDC or its business and that
may survive the Closing.
3.5 TITLE TO PURCHASE PRICE SHARES. Buyer is
the sole record and beneficial owner of the Purchase Price Shares. At
Closing, Buyer will have good and marketable title to the Purchase Price
Shares, which Purchase Price Shares are, and at the Closing will be, free and
clear of all options, warrants, pledges, claims, liens, and encumbrances and any
restrictions or limitations prohibiting or restricting transfer to Seller,
except for restrictions on transfer as contemplated by applicable securities
laws.
IV. SELLER’S AND PCDC’S REPRESENTATIONS AND WARRANTIES. Seller
and PCDC, jointly and severally, represent and
warrant to Buyer that:
4.1 ORGANIZATION AND GOOD
STANDING. Seller is a corporation duly incorporated, validly existing, and in
good standing under the laws of the State of Nevada. PCDC is a corporation duly incorporated,
validly existing and in good standing under the laws of the Province of British Columbia.
4.2 AUTHORITY AND ENFORCEABILITY. The
execution and delivery of this Agreement and the documents to be
executed and delivered at the Closing pursuant to the transactions contemplated hereby,
and performance in accordance with the terms hereof and thereof, have been duly
authorized by Seller and all such documents constitute the valid and
binding agreements of Seller enforceable in accordance with their
terms.
4.3 TITLE TO SHARES. Seller is the sole
record and beneficial owner of the Shares. At Closing, Seller will have
good and marketable title to the Shares, which Shares are, and at the Closing
will be, free and clear of all options, warrants, pledges, claims, liens and
encumbrances, and any restrictions or limitations prohibiting or restricting
transfer to Buyer, except for restrictions on transfer as contemplated
by Section 3.3 above. The Shares constitute all of the issued and
outstanding shares of capital stock of PCDC.
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V. OBLIGATIONS OF BUYER
PENDING CLOSING. Buyer covenants and agrees that between the date hereof and the
Closing:
5.1 NOT IMPAIR PERFORMANCE. Buyer shall not
take any intentional action would cause the conditions upon the
obligations of the parties hereto to effect the transactions contemplated hereby not
to be fulfilled, including, without limitation, taking or causing to be
taken any action that would cause the representations and warranties made by
any party herein not to be true, correct and accurate as of the Closing, or in
any way impairing the ability of Seller to satisfy its obligations as provided in
Article VI.
5.2 ASSIST PERFORMANCE. Buyer shall exercise
its reasonable best efforts to cause to be fulfilled those conditions
precedent to Seller’s obligations to consummate the transactions contemplated
hereby which are dependent upon actions of Buyer and to make and/or obtain any
necessary filings and consents in order to consummate the sale transaction
contemplated by this Agreement.
VI. OBLIGATIONS OF SELLER PENDING CLOSING.
Seller covenants and agrees that between the date hereof and the
Closing:
6.1 BUSINESS AS USUAL. PCDC shall operate and Seller shall cause
PCDC to operate in accordance with past
practices and shall use best efforts to preserve its goodwill and the goodwill of its
employees, customers and others having business dealings with PCDC. Without limiting the generality of the
foregoing, from the date of this Agreement until
the Closing Date, PCDC shall (a) make all normal and customary repairs to its
equipment, assets and facilities, (b) keep in force all insurance, (c) preserve in
full force and effect all material franchises, licenses, contracts and real
property interests and comply in all material respects with all laws and regulations, (d) collect all
accounts receivable and pay all trade creditors
in the ordinary course of business at intervals historically experienced, and
(e) preserve and maintain PCDC’s assets in their current operating condition and
repair, ordinary wear and tear excepted. PCDC shall not (i) amend, terminate or
surrender any material franchise, license, contract or real
property interest, or (ii) sell or dispose of any of its assets except in the
ordinary course of business. Neither PCDC nor Buyer shall take or omit to take any
action that results in Seller incurring any liability or obligation prior to or in
connection with the Closing.
6.2 NOT IMPAIR PERFORMANCE. Seller shall not
take any intentional action that would cause the conditions upon the
obligations of the parties hereto to effect the transactions contemplated
hereby not to be fulfilled, including, without limitation, taking or causing to
be taken any action which would cause the representations and warranties made
by any party herein not to be materially true, correct and accurate as of the
Closing, or in any way impairing the ability of Buyer to satisfy his
obligations as provided in Article V.
6.3 ASSIST PERFORMANCE. Seller shall
exercise its reasonable best efforts to cause be fulfilled those conditions
precedent to Buyer’s obligations to consummate
the transactions contemplated hereby which
are dependent upon the actions of Seller and to work with Buyer to make and/or
obtain any necessary filings and consents. Seller shall cause PCDC to comply with its obligations under
this Agreement.
VII. SELLER’S AND PCDC’ CONDITIONS PRECEDENT TO CLOSING. The
obligations of Seller and PCDC to close the transactions contemplated
by this Agreement are subject to the satisfaction at or prior
to the Closing of each of the following conditions precedent (any or all of
which may be waived by Seller and the Company in writing):
7.1 REPRESENTATIONS AND
WARRANTIES; PERFORMANCE. All representations and warranties of Buyer contained in this
Agreement shall have been true and correct, in all material respects, when
made and shall be true and correct, in all material respects, at and as of the
Closing, with the same effect as though such representations and warranties were
made at and as of the Closing. Buyer shall have performed and complied with
all covenants and agreements and satisfied all conditions, in all
material respects, required by this Agreement to be performed or complied with or
satisfied by Buyer at or prior to the Closing.
7.2 ADDITIONAL DOCUMENTS.
Buyer shall deliver or cause to be delivered such additional documents as may be necessary
in connection with the consummation of the transactions contemplated by this
Agreement and the performance of their obligations
hereunder.
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VIII. BUYER’S CONDITIONS PRECEDENT TO CLOSING. The
obligation of Buyer to close the transactions contemplated by
this Agreement is subject to the satisfaction at or prior to the Closing
of each of the following conditions precedent (any and all of which may be
waived by Buyer in writing):
8.1 REPRESENTATIONS AND
WARRANTIES; PERFORMANCE. All representations and warranties of Seller and PCDC contained in this Agreement shall have
been true and correct, in all material respects,
when made and shall be true and correct, in all material respects, at and as of
the Closing with the same effect as though such representations and
warranties were made at and as of the Closing. Seller and PCDC shall have performed and complied with
all covenants and agreements and satisfied all conditions,
in all material respects, required by this Agreement to be performed or
complied with or satisfied by them at or prior to the Closing.
IX. OTHER AGREEMENTS.
9.1 EXPENSES. Each party hereto shall bear
its expenses separately incurred in connection with this Agreement and
with the performance of its obligations hereunder.
9.2 CONFIDENTIALITY. The parties hereto
shall not make any public announcements concerning this
transaction other than in accordance with mutual agreement reached prior to any such
announcement(s) and other than as may be required by applicable law or judicial
process. If for any reason the transactions contemplated hereby are not
consummated, then Buyer shall return any information received by Buyer from
Seller or PCDC, and Buyer shall cause all confidential information obtained by
Buyer concerning PCDC and its business to be treated as such.
9.3 BROKERS’ FEES. No party to this Agreement has
employed the services of a broker and each agrees to indemnify
the other against all claims of any third parties for fees and commissions of any
brokers claiming a fee or commission related to the transactions contemplated
hereby.
9.4 ACCESS TO INFORMATION POST-CLOSING;
COOPERATION.
(a) Following the Closing, Buyer and
PCDC shall afford to Seller and
its authorized accountants, counsel, and
other designated representatives reasonable access (and including using reasonable
efforts to give access to persons or firms possessing information) and
duplicating rights during normal business hours to allow records, books,
contracts, instruments, computer data and other data and information (collectively,
“Information”) within the possession or control of Buyer or PCDC insofar as such access is reasonably
required by Seller. Information may be requested under this
Section 9.4(a) for, without limitation, audit, accounting, claims, litigation
and tax purposes, as well as for purposes of fulfilling disclosure and reporting
obligations and performing this Agreement and the transactions contemplated
hereby. No files, books or records of PCDC existing at the Closing Date shall be
destroyed by Buyer or PCDC after Closing but prior to the expiration of any
period during which such files, books or records are required to be maintained
and preserved by applicable law without giving the Seller at least 30
days’ prior written notice, during which xxxx
Xxxxxx shall have the right to examine and to remove any such files, books and
records prior to their destruction.
(b) Following the Closing, Seller shall
afford to PCDC and its authorized accountants, counsel and other
designated representatives reasonable access (including using reasonable efforts to
give access to persons or firms possessing information) duplicating
rights during normal business hours to Information within Seller’s possession or control relating to the
business of
PCDC. Information may be
requested under this Section 9.4(b) for, without limitation, audit, accounting, claims,
litigation and tax purposes as well as for purposes of fulfilling disclosure
and reporting obligations and for performing this Agreement and the
transactions contemplated hereby. No files, books or records of PCDC existing at the Closing Date shall be
destroyed by Seller after Closing but prior to the
expiration of any period during which such files, books or records are required to
be maintained and preserved by applicable law without giving the Buyer
at least 30 days prior written notice, during which time Buyer shall have the
right to examine and to remove any such files, books and records prior to their
destruction.
(c) At all times following the Closing,
Seller, Buyer and PCDC shall use reasonable efforts to make available to
the other party on written request, the current and former officers, directors,
employees and agents of Seller or PCDC for any of the purposes set forth in
Section 9.4(a) or (b) above or as witnesses to the extent that such persons may
reasonably be required in connection with any legal, administrative or other
proceedings in which Seller or PCDC may from time to be involved.
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(d) The party to whom any Information or
witnesses are provided under this Section 9.4 shall reimburse the provider
thereof for all out-of-pocket expenses actually and reasonably incurred in
providing such Information or witnesses.
(e) Seller, Buyer, PCDC and their respective employees and
agents shall each hold in strict confidence all
Information concerning the other party in their possession or furnished by the other or
the other’s representative pursuant to this Agreement with the same degree of
care as such party utilizes as to such party’s own confidential information (except
to the extent that such Information is (i) in the public domain through no
fault of such party or (ii) later lawfully acquired from any other source
by such party), and each party shall not release or disclose such Information to
any other person, except such party’s auditors, attorneys, financial advisors,
bankers, other consultants and advisors or person with whom such party has a
valid obligation to disclose such Information, unless compelled to
disclose such Information by judicial or administrative process or, as advised by
its counsel, by other requirements of law.
(f) Seller,
Buyer and PCDC shall each use their best efforts to
forward promptly to the other party all notices,
claims, correspondence and other materials which are received and
determined to pertain to the other party.
9.5 Intentionally
Omitted.
9.6 FILINGS AND CONSENTS. Buyer, at its
risk, shall determine what, if any, filings and consents must be made and/or
obtained prior to Closing to consummate the purchase and sale of the Shares.
Buyer shall indemnify the Seller Indemnified Parties (as defined in
Section 11.1 below) against any Losses (as defined in Section 11.1 below) incurred
by any Seller Indemnified Parties by virtue of the failure to make and/or
obtain any such filings or consents. Recognizing that the failure to make
and/or obtain any filings or consents may cause Seller to incur Losses or
otherwise adversely affect Seller, Buyer and PCDC confirm that the provisions of this
Section 9.6 will not limit Seller’s right to treat such failure as the failure of a
condition precedent to Seller’s obligation to close pursuant to Article
VII above.
X. TERMINATION. This Agreement may be
terminated at, or at any time prior to, the Closing by mutual written
consent of Seller, Buyer and the Company. If this Agreement is terminated as
provided herein, it shall become wholly void and of no further force and effect and
there shall be no further liability or obligation on the part of any party
except to pay such expenses as are required of such party.
XI. MISCELLANEOUS.
11.1
NOTICES. All notices and
communications required or permitted hereunder shall be in writing and deemed given
when received by means of the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt requested,
or personal delivery, or overnight courier, as follows:
(a) If to Seller or the Company after the
Closing, addressed to:
1st Home Buy & Sell
Ltd.
0000 X. Xxxxxx Xxx., Xxxxx
000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
(b) If to Buyer or PCDC, addressed to:
Xxxxx Xxxx,
President
Pacific Coast Development
Corp.
00000 00X Xxxxxx
Xxxxxx, XX X0X 0X0
or to such other address as any party
hereto shall specify pursuant to this Section 11.1 from time to
time.
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11.2 EXERCISE OF RIGHTS AND REMEDIES. Except
as otherwise provided herein, no delay of or omission in the exercise
of any right, power or remedy accruing to any party as a result of any breach
or default by any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed as a waiver of or
acquiescence in any such breach or default, or of any
similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default occurring
before or after that waiver.
11.3 TIME. Time is of the essence with
respect to this Agreement.
11.4 REFORMATION AND SEVERABILITY. In case
any provision of this Agreement shall be invalid, illegal or
unenforceable, it shall, to the extent possible, be modified in such manner as to be valid,
legal and enforceable but so as to most nearly retain the intent of the parties,
and if such modification is not possible, such provision shall be
severed from this Agreement, and in either case the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any way be
affected or impaired thereby.
11.5 FURTHER ACTS. Seller, Buyer and
PCDC shall execute any and all
documents and perform such other acts which may be
reasonably necessary to effectuate the purposes of this
Agreement.
11.6 ENTIRE AGREEMENT; AMENDMENTS. This
Agreement contains the entire understanding of the parties relating to
the subject matter contained herein. This Agreement cannot be amended or
changed except through a written instrument signed by all of the parties hereto,
including the Company. No provisions of this Agreement or any rights hereunder
may be waived by any party without the prior written consent of the
Company.
11.7 ASSIGNMENT. No party may assign his or
its rights or obligations hereunder, in whole or in part, without
the prior written consent of the other parties.
11.8 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State of Nevada, without giving effect to principles of conflicts or choice of
laws thereof.
11.9 COUNTERPARTS. This Agreement may be
executed in one or more counterparts, with the same effect as if
all parties had signed the same document. Each such counterpart shall be
an original, but all such counterparts taken together shall constitute a single
agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) the same with the
same force and effect as if such facsimile signature page was an original
thereof.
11.10 SECTION HEADINGS AND GENDER. The Section
headings used herein are inserted for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement. All
personal pronouns used in this Agreement shall include the other
genders, whether used in the masculine, feminine or neuter, and the singular
shall include the plural, and VICE VERSA, whenever and as often as may be
appropriate.
11.11 SPECIFIC PERFORMANCE; REMEDIES. Each of
Seller, Buyer and PCDC
acknowledges and agrees
that the Company would be damaged irreparably if any provision of this Agreement is not
performed in accordance with its specific terms or is otherwise breached.
Accordingly, each of Seller, Buyer and PCDC agrees that the Company will be entitled
to seek an injunction or injunctions to prevent breaches of the provisions of
this Agreement and to enforce specifically this Agreement and its terms and
provisions in any action instituted in any court of the United States or any state
thereof having jurisdiction over the parties and the matter, subject to
Section 12.8, in addition to any other remedy to which they may be entitled, at law or
in equity. Except as expressly provided herein, the rights, obligations and
remedies created by this Agreement are cumulative and in addition to any other
rights, obligations or remedies otherwise available at law or in equity,
and nothing herein will be considered an election of
remedies.
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11.12 SUBMISSION TO JURISDICTION; PROCESS
AGENT; NO JURY TRIAL.
(a) Each party to the Agreement hereby
submits to the jurisdiction of any state or federal court sitting in the
State of California, in any action arising out of or relating to this Agreement and
agrees that all claims in respect of the action may be heard and determined
in any such court. Each party to the Agreement also agrees not to bring any
action arising out of or relating to this Agreement in any other court. Each party
to the Agreement agrees that a final judgment in any action so brought will
be conclusive and may be enforced by action on the judgment or in any other
manner provided at law or in equity. Each party to the Agreement waives any
defense of inconvenient forum to the maintenance of any action so brought and
waives any bond, surety, or other security that might be required of any
other Party with respect thereto.
(b) EACH
PARTY TO THE AGREEMENT HEREBY AGREES TO WAIVE HIS OR HER RIGHTS TO JURY TRIAL OF ANY DISPUTE BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE
TRANSACTIONS CONTEMPLATED HEREBY. The scope of this waiver is intended to be all
encompassing of any and all actions that may be filed in any court and that relate to the subject
matter of the transactions, including, contract claims, tort claims, breach of
duty claims, and all other common law and statutory claims. Each party to the
Agreement hereby acknowledges that this waiver is a material inducement to enter
into a business relationship and that they will continue to rely on the waiver
in their related future dealings. Each party to the Agreement further
represents and warrants that it has reviewed this waiver with its legal counsel, and that
each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED ORALLY OR IN WRITING,
AND THE WAIVER WILL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
HERETO. In the event of commencement of any action, this Agreement may be filed
as a written consent to trial by a court.
12.13 CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof will arise favoring or disfavoring any party
because of the authorship of any provision of this Agreement. Any reference to any
federal, state, local, or foreign law will be deemed also to refer to law as
amended and all rules and regulations promulgated thereunder, unless the
context requires otherwise. The words “include,” “includes,” and “including”
will be deemed to be followed by “without limitation.” The words “this Agreement,”
“herein,” “hereof,” “hereby,” “hereunder,” and words of similar import
refer to this Agreement as a whole and not to any particular subdivision unless
expressly so limited. The parties hereto intend that each representation,
warranty, and covenant contained herein will have independent significance. If
any party hereto has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which that party has not breached will not
detract from or mitigate the fact that such party is in breach of the first
representation, warranty, or covenant.
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SELLER:
1st HOME BUY & SELL
LTD.
By:_________________________
Name: Xxxxxx Xxxxxxx
Title: President
PACIFIC COAST DEVELOPMENT
CORP.
By:_________________________
Name: Xxxxx Xxxx
Title: President
BUYER:
____________________________
Xxxxx Xxxx
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